In Vermont nuclear power plant dispute, a larger question of states' rights emerges

Adrienne LaFrance/Digital First Media photo
Vermont Attorney General Bill Sorrell and attorney David Frederick take questions outside of the U.S. Court of Appeals for the Second Circuit in New York City on Monday.

NEW YORK -- Nine states are banding together to argue that a federal judge's decision on the closure of a Vermont nuclear power plant could have a chilling effect on state-level legislative processes if it's upheld.

New York, Connecticut, Iowa, Maryland, Massachusetts, Mississippi, Missouri, New Hampshire and Utah filed a court document expressing support for Vermont and concern that an earlier federal court decision could "severely limit" the scope of states' abilities to regulate power companies.

A three-judge panel heard arguments in a Manhattan federal appeals court Monday from lawyers for the state of Vermont and for Entergy Corporation, the New Orleans-based company that runs Vermont Yankee Nuclear Power Plant. The state is challenging an earlier decision by J. Garvan Murtha, a federal judge in Vermont, that state lawmakers overstepped their authority by considering the plant's safety when deciding whether Vermont Yankee should continue operating. Overseeing safety is a function of the Nuclear Regulatory Commission.

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At the heart of the case is a broader question over the intersection of state authority and federal authority, which explains why a coalition of states is backing Vermont.

"There's always a challenge in situations where both the states and the federal government are regulating an area," said New Hampshire Associate Attorney General Anne Edwards. "Another example of that is elections laws. There is often disagreement between the states and federal government on whether or not a state's law is pre-empted [by federal law]. This is your typical pre-emption challenge where the state of the Vermont felt it had the authority to impose the law the way it did and the federal government disagrees."

Specifically at issue is the question of whether Murtha delved too deeply into the legislative record to determine the state's motivation for shutting down Vermont Yankee.

"One of the bigger questions is: To what extend should you really be examining the legislative history?" said Cheryl Hannah, a professor at Vermont Law School. "David Frederick, the attorney that argued for Vermont, essentially said that Judge Murtha should not have gone into that detail of the legislative record. He said he cherry-picked statements and really did not look at what the real motivation was."

Entergy, on the other hand, says Vermont lawmakers "furnished the district court with a virtual cherry orchard of statements evincing that 'safety is the prime concern,'" according to court documents. The Vermont attorney general disputes this argument, saying that the state's main concern about Vermont Yankee has to do with the financial burden the state could face if the plant closes. Vermont Attorney General Bill Sorrell said on Monday that he worries his state could be burdened with millions and millions of dollars to pay for the possible closure of the plant.

Here's how the nine states put it in their joint brief: "If a company that operates a nuclear facility goes bankrupt or collapses, taxpayers may be forced to bear the cost of decommissioning; there is a sense in which nuclear utilities are 'too big to fail.'"

But a spokesman for Entergy brushed off the states' broader concerns, saying that Vermont lawmakers crossed a line on an issue that's clearly within the purview of federal regulators.

"The state of Vermont was attempting to shut down a federally licensed facility," said Entergy spokesman Jim Steets. "That goes beyond just trying to have some input or something to say. Our license was obtained after a very public process where the state has every opportunity to participate."

A spokeswoman for the Nuclear Regulatory Commission echoed Entergy's position: "In order to operate, you need to have a license from the NRC, and the state can take part in the process by requesting a hearing or being an interested party in a hearing that is requested by someone else," said NRC spokeswoman Diane Screnci. "That's how states can participate in the NRC licensing process. What a state can't do is take away an NRC license."

Sandy Levine, an attorney with the Conservation Law Foundation, says if Murtha's decision is upheld, it would eviscerate states' abilities to make meaningful decisions about utilities within their borders -- a standard that she and others say has been established by Supreme Court decisions in the past.

"If a state can completely forbid and have a moratorium on nuclear power, then clearly the state has the authority to not extend the operation at the end of a license," Levine said. "This is like a lease. You've used up your lease and it's the landlord's decision. Vermont, for any number of reasons -- economic, primarily -- made a decision not to extend the lease."

Levine and others argue that if Murtha's decision stands, it also will reinforce the idea that the intent behind legislation can carry as much weight as the law itself. Lawmakers may think twice about what discussions they have during the legislative process.

"Obviously this is a significant case, not just about nuclear power but about power in general and states' rights in general," Levine said. "What authority do states have over operations that happen within their borders? I think the arguments were clear today that the state needs to have a role there. Entergy's suggestion that you can just throw that our entirely are groundless."

Both sides appeared buoyed after proceedings at the Second U.S. Circuit Court of Appeals on Monday. It could be weeks or months before the panel of judges hands down its decision in the case.